President’s severance from Roxbury college bars criticism

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“It’s taxpayer money, tuition money at stake. This has to end,” said John Gatti Jr., an architect of theMassachusetts whistle-blower law, on clauses like the one signed by Terrence Gomes (above).

By Mary Carmichael
Globe Staff
June 20, 2012

In the waning hours of his presidency Monday, outgoing Roxbury Community College president Terrence Gomes signed a sweeping resignation agreement that prohibits him, the college’s board, and their successors from speaking negatively about “each other, their officers, agents, or attorneys, in any manner whatsoever.’’

The agreement also includes a clause stating that its terms are to be kept confidential to almost all parties except “as may be required by law.’’

Under the Roxbury Community College deal, obtained Tuesday by the Globe through a public records request, Gomes will receive $98,374.25 by the end of July, as well as payment for unused vacation days and sick leave. He has been a state employee for four decades, so the latter payment is expected to be substantial.

Confidentiality and nondisparagement clauses are common in the private sector but can be controversial when used by state agencies, because they can be perceived as hush agreements, especially when employees receive large sums in return.

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The Gomes agreement, though legal, may not sit well with faculty members who have demanded more transparency from their leaders in recent weeks. Several professors and administrators, be they supportive or critical of Gomes, have questioned the board’s decision to instruct him not to respond publicly to recent allegations, ranging from financial and academic mismanagement to failing to report campus crimes, against his administration.

Some state officials have refused to sign confidentiality and nondisparagement agreements. Daniel Grabauskas, former MBTA general manager, said in May 2011 that the Massachusetts Bay Transportation Authority tried to keep his $327,487 severance secret when he agreed to resign two years ago; he would not go along with its terms.

The state attorney general’s office has advised public bodies against using the clauses, regularly sending agencies a legal advisory that says “confidentiality as such is prohibited, unless required by law.’’ It also cautions agencies against barring workers from talking to reporters.

Yet the practice is common. A Globe review last year of more than 150 large severance and settlement agreements signed by state agencies since 2005 found more than half had a confidentiality or nondisparagement clause. One in five agreements contained both clauses, as Gomes’s does.

Kenneth Tashjy, who serves as general counsel for all Massachusetts community colleges and represented the Roxbury Community College board in its negotiations with Gomes, said the language of the clauses did not strike him as unusual.

“We use that as boilerplate to make sure that people think before they speak,’’ said Tashjy, who has facilitated several similar negotiations in the past few years. “At the end of the day, none of it’s enforceable.’’

But John Gatti Jr., a former state employee union official and an architect of the Massachusetts public employee whistleblower law, said the clauses concerned him.

“It’s taxpayer money, tuition money at stake,’’ he said. “This has to end.’’

Confidentiality clauses are not especially unusual in higher education. The University of Massachusetts has used them to settle with laid-off administrators.

But Frank LoMonte, executive director of the Student Press Law Center in Atlanta, said it was strange for a no-disparagement clause to appear in a college administrator’s departure agreement, especially regarding future comments about the board of trustees, rather than the institution as a whole.

‘It’s taxpayer money, tuition money at stake. This has to end.’

John Gatti Jr., an architect of the Massachusetts whistle-blower law, on clauses like the one signed by Terrence Gomes

“In the commercial context, in a business relationship, it’s not terribly uncommon to have a no-disparagement clause about the company; in return for getting a nice severance package you essentially take a vow of silence,’’ he said.

“It’s debatable whether a no-disparagement clause about an institution [of higher education] is appropriate or standard. But it’s very much not standard to have a clause about the board.’’

The clause could put Gomes or board members in awkward positions if they find themselves questioned over the recent allegations against Gomes’s administration; they have roots in a pending US Department of Education audit.

“There are times when it’s necessary to make disparaging comments about people, such as whistle-blowing,’’ said LoMonte. “If the president learns that board members are engaging in some dealings to the detriment of the institution, there’s an obligation to speak out. I don’t think you could contract away that obligation.’’

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